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Universal Music wants Bang sanctioned over deleted TikTok videos

By Chris Cooke | Published on Wednesday 10 August 2022

Universal Music has asked a judge in Florida to sanction energy drink Bang for deleting social media videos that allegedly included the major’s music, despite those videos being required in an ongoing copyright infringement legal battle.

Bang has been sued by both Universal Music and Sony Music for including unlicensed music in promotional videos posted to platforms like TikTok and Instagram. Lawyers for the energy drink brand have argued that their client’s marketeers were under the impression that such videos were covered by the music licences secured by the social media companies. But those licences only cover user-generated content, not brand-made content.

Last month the judge overseeing the Universal lawsuit issued a summary judgement in the music firm’s favour, concluding that Bang had indeed infringed copyrights controlled by the major by making and uploading promotional videos that included unlicensed music. Which was a definite win for the music company.

That said, it wasn’t a complete win. The judge did not hold Bang liable for the influencer content it had commissioned and which also included unlicensed Universal tracks. Although arguably the major could have presented stronger arguments regarding the influencer videos, so that particular part of the judgement doesn’t necessarily set any strong precedent.

Meanwhile, with the videos where Bang was liable for infringement, the judge didn’t make any ruling on the damages the drinks firm should pay Universal, concluding that assessing all that needed more scrutiny. Which means the Universal v Bang dispute is still ongoing.

In a court hearing yesterday, Universal Music’s lawyer James Sammataro focused on the TikTok videos that Bang deleted after being made aware of the alleged copyright infringement by Universal, Sony and others.

By deleting those videos, and the accompanying stats that record views and interactions, Bang had made it difficult for Universal to pursue legal action in relation to that specific content in addition to the videos that still exist. Because without having the actual videos it is hard to prove liability, and without the stats it is hard to assess potential damages.

In a filing on the deleted videos submitted to the courts back in June – soon after Sony Music had made similar complaints as part of its Bang litigation – Universal wrote: “For months, defendants led plaintiffs to believe that they would soon produce the videos, which are perhaps the most critical evidence in this case”.

However, it said, it then came to light that many of those videos had been deleted. In fact, Universal’s legal filing added: “Defendants removed 513 videos from their social media accounts after receiving cease and desist demands from plaintiffs, Sony Music Entertainment, and others” and then “failed to preserve about 436 removed videos”.

“The removed videos include at least 74 additional infringing videos that were not previously known to plaintiffs”, the legal filing continues, “and defendants knowingly concealed this information from plaintiffs and the court for months while strategically allowing several critical case deadlines to pass”.

“Plaintiffs have been severely prejudiced by defendants’ spoliation and lack of candour”, Universal then argued. “The destroyed videos are directly relevant to both liability and damages. If properly preserved, the videos would have revealed their social media ‘reach’ – the number of views, likes, shares, and comments by other social media users”.

“Without that evidence”, it went on, “plaintiffs were unable to move for summary judgment on the additional infringing videos and were unable to use the engagement data to prepare a fully informed expert report on actual damages”.

Universal wants the court to sanction Bang in relation to the deleted videos, in such a way that it will be assumed that the energy drink is liable for copyright infringement in relation to that content. And, for the purposes of calculating damages, that those videos were viewed as many times as Bang’s most popular posts on TikTok.

According to Law360, Bang’s legal rep Shauna Manion countered in court yesterday that Universal was basically trying to extend last month’s summary judgement to a whole load more videos via seeking a so called spoliation motion. The court should reject those efforts, she added, because – after all – the major could file another lawsuit in relation to the other content.

The judge didn’t really seem that persuaded by that argument, though. Meanwhile, Sammataro criticised Bang’s general conduct in relation to this entire legal battle, before adding of Manion’s proposal that a separate lawsuit be filed for the missing videos: “That’s my remedy? I get to go relive that experience again? And how do you produce a lawsuit when the evidence is already gone?”

The case continues – with further hearings scheduled for next week.